Can neighbours use a boundary wall as part of their extension? Will my cottage be damaged by the new five-storey block being built beside it? Am I entitled to redress from neighbouring developers for the loss of privacy? Are our new neighbours entitled to cut down the trees on our boundary?
Regular readers of the Property Clinic column in this paper will be familiar with some of these questions. With more people now working from home due to Covid and new homes construction ramping up, more and more of these contentious issues will arise.
Property boundaries are a common feature of our physical environment. We see them all around us – or, at least, we see the physical features that we assume are the boundaries, whether they be walls, hedges, or various types of fences.
But that can be a dangerous assumption. What people generally don’t think about – unless they are a surveyor specialising in boundary surveys – is that each land and property unit has a limit defining the extent of its ownership or legal title, that is, its legal boundary, which may or may not coincide with the centre of the visible physical feature.
When differences or issues arise on where exactly that legal boundary is located, or with the size or nature of a neighbouring development, matters can escalate very quickly. Neighbours who had previously lived peacefully beside each other for many years can suddenly be plunged into confrontation. New building extensions incorporating a party (shared) wall for support, roof projections, removal of existing boundary features and/or damage, including cracks, resulting from construction work, are likely to provoke reactions ranging from annoyance to outright confrontation leading to litigation.
Boundary proximity disputes resulting from construction or renovation works, whether residential or commercial, are often fractious, protracted, and stressful. They can easily escalate and result in one party instigating legal proceedings, which may be costly to both. The outcome involves seriously damaged relationships, legal costs, and an unsatisfactory resolution for one, and occasionally both parties.
Process
How can we avoid such scenarios? The good news is that we don’t have to reinvent the wheel.
The UK’s Party Wall Act, 1996, provides for a process where disputed issues can be addressed before any works commence. This Act, which applies to England and Wales only, is specific and prescriptive. It was enacted specifically to serve the legitimate interests of both parties, and to bring reassurance that their respective interests will be provided for and protected.
It does this by setting out procedures to deal with construction and excavation works on or close to land and property boundaries. The Act states that a person or entity intending to carry out such work (the building owner) must serve a minimum of two months’ notice on the adjoining owner. If the adjoining owner does not give written agreement to the development proposals within 14 days, the Act provides for both parties to appoint an agreed surveyor who should act impartially, or for both parties to appoint their own surveyor or “relevant professional”.
The surveyor/s will then draft a document, in accordance with the provisions of the Act, detailing the work to be done close to, or on, the agreed or accepted boundary line. It also describes how and when the work is to be done. This document facilitates the interests of the building owner by ensuring that existing cracks and other defects to the adjoining property are recorded by the surveyor before works commence, thereby avoiding unreasonable claims from the adjoining owner.
It provides for a right of access to the adjoining property to execute work where necessary. The document facilitates the interests of the adjoining owner by specifying that their lands and buildings will not be unduly compromised during the work. It also specifies that the works are carried out without unnecessary inconvenience.
This document drafted by the surveyor/s is known as a Party Wall Award. Under the 1996 Act, a building owner must have a Party Wall Award before commencing work unless the adjoining owner has given written agreement to the proposed work. In essence, the act obliges both parties to abide by the terms as set out in the award. The act also provides for an appeal to the courts, within 14 days against an award.
The 1996 act thereby mitigates the threat of disputes arising by compelling both parties to enter into an agreement before any works commence.
Because we don’t have that mandatory process in Ireland, and because parties are very often taking reactive action amid claims and counter-claims, a disagreement can quickly escalate to a bitter dispute.
Ownership issues
Of course, one of the most challenging issues that arise regularly in these disputes are varying interpretations of the extent of ownership. For example, in densely developed urban areas with multilayered historical title interests and complex boundary configurations at different floor levels, such as in Dublin city, disputes concerning elements of construction projects adjacent to boundaries are potentially intractable. This is especially true if various historical maps, including title maps, some of uncertain provenance, are presented as evidence of ownership.
Resorting to uncertain or conflicting boundary line interpretations invariably prolongs disputes, thereby resulting in considerable additional costs to proposed developments.
Arguments over the ownership of dividing walls are frequently exacerbated by the use of maps with non-conclusive boundaries which are inappropriate and not intended for such use.
However, protracted delays to many rejuvenation schemes in Dublin city have been minimised because of the involvement, in advance, of the city council’s Survey and Mapping Division in interpreting deed maps and resolving boundary-related issues as required, thereby clearly demonstrating the advantages of early intervention and boundary resolution.
Learning from our neighbours
The Society of Chartered Surveyors Ireland (SCSI) has issued a number of guidance documents for surveyors dealing with several aspects of building developments and boundary-related issues. However, without a mandatory process for prior agreement, the role of relevant professionals, including surveyors, engineers, and architects, in effectively minimising the risk of disputes arising from party boundary construction issues is limited.
Sections 43 to 47 of the Land and Conveyancing Law Reform Act, 2009 – the relevant legislation with regard to boundary proximity work – include useful and welcome provisions in relation to access to adjoining lands and properties for inspections and maintenance work in a wide range of circumstances. However, it does not deal with issues such as the definition of legal boundary.
Following concerns relating to other issues – namely easements including rights of way – the Government recently committed to completing a review of the Act, by the end of the summer. So, the opportunity is there to amend the Act and include provisions like those provided by the UK’s Party Wall Act. This would provide the State with comprehensive legislation to facilitate investigation, construction, and maintenance work on or in close proximity to the boundaries of neighbouring land and property.
The introduction of a statutory process in Ireland similar to that of the UK would, I suggest be of very significant benefit and would foster a new proactive approach to dealing with boundary, or boundary proximity construction work, pre-empting many of the disputes and associated delays we so often see today. The Government should grasp the opportunity.
Patrick Shine is a chartered geomatics surveyor, a chartered civil engineer and a member of the Society of Chartered Surveyors Ireland, scsi.ie
